The question of what degree of custody constitutes an "arrest" has proven problematic in various areas of law, from federal constitutional law to sentencing. (1) This challenge is particularly salient with regard to traffic citations, which on the one hand do entail a brief detention, but on the other hand rarely result in a statement that the driver is "under arrest" or in a trip to the police station. Recently, in United States v. Leal-Felix, (2) the Ninth Circuit held en banc that a defendant's traffic citations were not "arrests" for purposes of calculating his criminal history under section 4A1.2(a)(2) of the Sentencing Guidelines. Although the Ninth Circuit's holding creates a circuit split, (3) the majority's reasoning exemplifies the common law methodological approach that best furthers the purpose of the Guidelines. This approach also allows courts to address two potential policy concerns stemming from the Guidelines: first, it avoids the un-wanted result of punishing with equal severity criminals with unlike culpability; and second, it mitigates overstatement of minorities' criminal histories, which may be inflated due to traffic citations resulting from racial profiling.

On April 20, 2009, Israel Leal-Felix, a previously deported Mexican citizen, was charged with illegally reentering the United States. (4) Leal-Felix entered into a binding plea agreement, under which in exchange for a guilty plea, the government would recommend that he be sentenced at the lower end of the applicable Sentencing Guidelines range at a total offense level of nine. (5) Both parties waived their rights to appeal the sentence so long as the district court imposed a sentence in accordance with the plea agreement, but Leal-Felix reserved the right to appeal the calculation of his criminal history. (6) As of June 8, 2009, when Leal-Felix entered his plea of guilty pursuant to the plea agreement, his criminal history included two citations for driving with a suspended license, received on November 17 and November 19, 1998. (7) The court sentenced him for both citations on January 19, 2000, and he received "concurrent sentences of 36 months' probation on the condition that he serve 180 days in county jail." (8) The presentence investigation report (PSR) thus calculated that Leal-Felix had fourteen criminal history points, including four points from the two traffic violations, (9) and was therefore in criminal history category VI. (10)

At his sentencing hearing, Leal-Felix argued that, under Guidelines section 4A1.2(a)(2), (11) the second violation should not count in his criminal history because both violations had been sentenced on the same day and because the first violation had resulted in only a citation, not an arrest. (12) The district court disagreed and held that a traffic citation constituted an arrest, meaning that the first citation was "an intervening arrest." (13) Using this interpretation, the court calculated that Leal-Felix had thirteen criminal history points, which still placed him in criminal history category VI, and accordingly sentenced him to twenty-one months (the low end of the Guidelines range for category VI). (14)

On appeal, a divided panel of the Ninth Circuit affirmed the district court. (15) Writing for the panel, Judge Goodwin (16) cited the Seventh Circuit case United States v. Morgan, (17) which held that treating traffic stops as arrests under section 4A1.2(a)(2) comported with the Guidelines and "federal parlance" under When v. United States. (18) Judge Goodwin succinctly concluded that the district court had correctly calculated Leal-Felix's criminal history. (19) Judge Bennett dissented. He argued that the plain meaning of the word "arrest" unambiguously does not include traffic citations. …